A commentary on the case of Abdelbaset al-Megrahi, convicted of the murder of 270 people in the Pan Am 103 disaster.

Saturday, 28 December 2013

Megrahi trial and first appeal lawyers defend their performance

[I am grateful to both Richard Marquise and Frank Duggan for sending me the text of the following report published in The Times on 21 December. It was not referred to on this blog at the time because it did not, for some reason, appear on the newspaper website (to which I subscribe, albeit through gritted teeth given my reluctance to contribute to the Murdoch coffers). It reads as follows:]One of the key lawyers involved in the Lockerbie case has broken silence to condemn critics of the Scottish justice system, who claim that Libya was not responsible for the atrocity.

Bill Taylor QC, who defended the convicted Libyan bomber Abdelbaset al-Megrahi, argues that allegations claiming the attack was ordered by Iran rather than Libya were examined in detail at the time of the trial, and dismissed, because they did not stand up to detailed scrutiny.“We did raise all of these other possibilities in the course of our defence,” he said. “They were examined in the greatest detail, and fully investigated, but they did not stand up. It’s like all the theories in the Kennedy assassination. They are simply doors that have to be opened, and investigated if you are defending – as we did.”Mr Taylor’s intervention comes on the 25th anniversary of the Lockerbie bombing, and follows a spate of conspiracy theories aimed at undermining the original verdict, which resulted in the conviction of al-Megrahi. The Libyan was imprisoned in Scotland, before being released and returned home by the Scottish Government on compassionate grounds in 2009.Campaigners, led by Dr Jim Swire, whose daughter died in the disaster, have long claimed that al-Megrahi was innocent, that Libya played no part in the bombing, and that the atrocity was ordered by Iran in retaliation for the downing of an Iranian airliner by an American warship in 1988.However, lawyers involved at the time of the trial, who have not felt able to speak out in response, say that the Iran connection and other theories were subjected to rigorous scrutiny at the time, and failed to pass the standards required in a court of law.In particular, the suggestion that the bomb was put on board at Heathrow rather than in Malta as the prosecution stated, was “tested to destruction” by the defence team, whose case would have been vindicated if it had stood up in court.But it did not. They point out that those who now back the Heathrow theory have not been able to explain how clothes, purchased in Malta, were found in the suitcase in which the bomb was packed.“If the suggestion is that the bomb was placed on board at Heathrow, how on earth did it occur to anybody to take a trip to Malta in order to buy some children’s clothing, in order to take that clothing back to London to assemble a bomb? It just doesn’t stack up,” said one member of the defence team.Defence lawyers have always argued that the identification evidence against al-Megrahi supplied by the Maltese shop-keeper Tony Gauci, was weak, and that if it had been tested in front of a jury, rather than being heard by three judges, the Libyan would have been acquitted on those grounds.The Scottish Crimninal Cases Review Commission, which examined the evidence in detail, concluded that this did constitute grounds for appeal. However, al-Megrahi returned to Libya before the appeal could be heard.The evidence that he was involved in the plan to insert a bomb remains strong. At the time of the trial the prosecution sought to introduce additional evidence about the money he was paid by the Libyan government. Accounts totaling several million dollars were found, which would have undermined al-Megrahi’s claim that he was only a low-level official. The evidence was disallowed, because not enough time had been given to consider it.Mr Taylor added that the decision by the Libyan administration, announced this week by the Lord Advocate Frank Mulholland, to appoint prosecutors to examine the evidence, undermined the argument that Libyan was not involved in the outrage. He said: “If the bomb was planted in Heathrow or Frankfurt by people who were many miles away in Libya, and of which the Libyans knew nothing, why is the new administration in Libya appointing two prosecutors, who will be liaising with the Lord Advocate in the discovery of any fresh evidence?”[A commentary on this report will appear on this blog in due course. But in the meantime, for a rebuttal of the quite ludicrous assertion that the thesis of Heathrow rather than Malta ingestion of the bomb suitcase was “tested to destruction” by Megrahi’s defence team, readers are referred to Dr Morag Kerr’s book Adequately Explained by Stupidity? Lockerbie, Luggage and Lies. An account of the performance of Megrahi’s then legal team during the Zeist trial and the first appeal can be found here.]

38 comments:

Defence advocate who blew a high-profile case that should have been an easy win seeks to justify himself. Fancy that.

I'm appalled by the defence performance, not so much in the area of the suitcase jigsaw where I think they may have walked into a baited trap, but in the area of the Frankfurt baggage records.

Taylor allowed only the relatively uncontentious reconciliations to be laid before the court - the Vienna and Kuwait baggage that matched up perfectly. That suggested to the court that the records were reliable, and so the court was able to decide that the "Malta" reconciliation could be regarded as showing an unaccompanied item from that airport. He did bring out the Warsaw reconciliation, which like the Malta one did not match up to a legitimate luggage transfer, but then he failed to capitalise on it.

He should have called the passengers on the Munich and Berlin flights, and shown that while they certainly had luggage transferred to PA103A and these items must have been among the 25 coded trays, none of these 25 trays reconciled to either the Munich or the Berlin coding workstations and windows.

He also failed to show the extent of the data loss at Frankfurt. The missing computer records, if they had been saved, would have shown in an instant whether tray 8849 was really part of the group of 30 items coded from the Malta flight, but because the records were lost, everyone was reduced to guesswork and that isn't good enough. The fact that nobody realised that PA637 from Berlin was important until nearly a year after the disaster, and the records of the transfer luggage from that flight were no longer available by then was also important. So much material to make hay from, all ignored.

He should also have pointed out that while nobody could deny the theoretical possibility that the Malta airport security system might be circumvented, by someone, some day, nobody had shown how it could have been circumvented that day, by Megrahi, in respect of KM180. More importantly, he should have pointed out that all the possibilities suggested would have left evidence in the paper trail showing what had been done. The idea that Megrahi circumvented that security that day in such a way as to leave no evidence that it had been done at all is ludicrous.

Defence fail, Mr. Taylor, and coming out to insinuate nastily that your client was guilty anyway is just nauseating.

Personally, I thought Taylor blew the case because he believed the prosecution case was too weak to succeed and he didn't actually have to exert himself. If he's now saying he blew it because he thought his client was guilty, that's a whole different can of worms.

The very idea that the Heathrow introduction theory was "tested to destruction" by the defence team is belied by the court transcripts themselves. Part of the defence closing submissions, and an important part at that, was the suggestion that if the Heathrow interline luggage had been rearranged out on the tarmac to put the blue Tourister from Frankfurt on the bottom layer, then the case Bedford saw could have been replaced on top of that and been the bomb. It was an excellent point and should have won them the case, however the judges at that point appeared to reverse the burden of proof and said, but it could have been put somewhere else so it hasn't been proved to be the bomb so we'll ignore it. This is not "testing to destruction" in anyone's book.

The point about the Maltese clothes is simply silly. If a terrorist gang is assembling a booby-trapped suitcase to load on a flight at Heathrow, then why would they not include clothes acquired by someone who had been passing through Malta? It's no more unlikely than anywhere else.

What terrorists would be very unlikely to do would be to devise a plan to introduce a bomb into an aircraft at Malta, to explode after two transfers to other aircraft, in a way so cunning that even after the event no trace at all could be discovered of the act at the airport - and then blow the whole thing by packing the suitcase with brand new, locally-manufactured, easily traceable clothes bought rather conspicuously in a small owner-operated shop only three miles from the airport, only a couple of weeks before the bombing.

The idea that the same man both bought the clothes (and that man not a "low-level operative" either) and then showed up himself at the airport for the introduction of the bomb is also somewhat improbable. That he was showing his own face openly with no disguise, and that while he used a passport in a false name on the second occasion he used his own passport on the first occasion is also improbable. Also improbable is his travelling with his alleged co-conspirator on the second occasion, and the co-conspirator using his own passport in his own name, and also his having meetings in Malta in his own name and staying at a hotel where he was well known in his own name.

One might say, terrorists are stupid, but if anyone can get a bomb on board a flight from Malta without leaving any trace behind, he's not stupid. I merely point all this out to counter the silly point that nobody would put Maltese-bought clothes in a bomb suitcase intended for introduction at Heathrow.

Anyway, the bomb suitcase WAS the one seen at Heathrow before the feeder flight landed. And all the experts failed to put the evidence together. Taylor and others need to face facts, here.

And finally, it is of no relevance whatsoever whether or not Megrahi had a lot of money or where it came from ( and I understand he himself denied that and claimed to have bank statements to prove it), if he was provably more than a thousand miles away when the bomb was introduced into the baggage system.

There were no comments when I e-mailed the above - I was referring to Bill Taylor's comments not Rolfe's!

Incidentally I have a file of (pretty one-sided)correspondence with Alastair Duff offering the defence my help prior to the trial. I certainly pointed out the primary suitcase was introduced at Heathrow. They didn't even ask me for a chat but obviously they had it covered. Tony Kelly couldn't afford a stamp to reply but then he already had a brilliant researcher!

I wonder if Bill Taylor ever considered that the culprits had laid a trail of sweeties to lead to Malta and Libya?

I wonder if Bill Taylor ever considered that the culprits had laid a trail of sweeties to lead to Malta and Libya?

It seems an unlikely thing for terrorists to do, but then these people, whoever they were, weren't crazy fanatical suicide bombers. They were clever. And I agree, there is some reason to believe they laid a false trail to Malta. Maybe someone else laid a false trail to Frankfurt, too. This is pure speculation, but I think it is something that has to be considered.

They point out that those who now back the Heathrow theory have not been able to explain how clothes, purchased in Malta, were found in the suitcase in which the bomb was packed.

Wrong. Anyone can come up with 10 different explanations.

In my suitcase could be clothes bought in Thailand, Cambodia, Malaysia, Denmark, USA, Sweden and Germany. I think a majority of them would be bought by somebody else.

Should I one day decide to put them together with a bomb, I hope for my dear sister (who sent me clothes as a gift this Christmas) that she will not find herself with a team of defense lawyers with same quality of Megrahi's.

It is the prosecution that has to prove that the buyer would have to be in the plot. Not done...

“If the suggestion is that the bomb was placed on board at Heathrow, how on earth did it occur to anybody to take a trip to Malta in order to buy some children’s clothing, in order to take that clothing back to London to assemble a bomb? It just doesn’t stack up,” said one member of the defence team.

... but it seems like the source of the statement subscribe to the theory that the clothes must have been bought on location by the person who made the bomb.

Cheap shots through the press to a poorly informed world is the oldest trick in the book.

If you really have something to say, discuss with people with knowledge.

I do think the last thing a terrorist gang would want to do is give away the carefully-concealed location of the introduction of the bomb by packing the case with clothes which could easily be traced to a shop almost next door to the airport in question.

It could well have been a piece of deliberate misdirection. If it was, I think it worked beyond someone's wildest dreams.

I'm inclined to think the clothes purchaser was part of the terrorist group, or an associate. The short time between the purchase and the disaster, and the sheer number of things which seem to have been bought at that transaction that were found on the ground does suggest a visit for the purpose of acquiring items to pack in the suitcase. Whether or not the person buying the clothes knew explicitly what was going on isn't something we can be sure about though.

Why not use second-hand clothes? Old clothes that wouldn't be traceable through the manufacturer? New stuff bought for cash in a busy department store from a Saturday temp? Rob a washing line? Trail of sweeties, indeed.

If Megrahi had bought these clothes himself, while you can always suggest he didn't know what was going on, I'd have strung him up and thrown away the key on that basis. He didn't, though. We don't know who did, and I suspect we never will.

You know, my ghast is well and truly flabbered by this development. To realise that Megrahi's own defence counsel has now betrayed him, and joined the chorus of nodding dogs agreeing with the perverse verdict, is bordering on the surreal.

It makes more sense of Magnus Linklater's bizarre and non-sequitur contributions though, to understand that he has in fact been channelling Bill Taylor in his nasty, condemnatory articles and his constant sniping at John Ashton.

Taylor has picked a strange time to break cover with this, though. Right at the moment when it has been proved beyond doubt that the bomb was actually in the suitcase Bedford saw at quarter to five. If this is strategy, I'm at a loss to see the logic behind it.

The State had to devise a plot to incriminate Libya to conclude a bogus criminal investigation in order to avoid a public enquiry that revealed the truth.

This included blast damaged clothing which was needed as evidence of an IED explosion and had to be traced to a particular outlet, near Libya, so that a particular person (Libyan) could be identified as the purchaser, by an almost-bribed shopkeeper, so that an assumption could be made at a show trial that the person who allegedly bought the clothes also put them into and loaded the ‘bomb case’, at Luqa!

But without this clothing (and fragment) there is no evidence of an IED, let alone a Libyan or other ‘bomb plot’, as opposed to an explosion, cause unknown.

Nevertheless you may conclude that the ‘bomb case’ was loaded at Heathrow, except why would clothing from a Maltese tourist shop (needed for a Luqa bomb plot) appear in a ‘bomb case’ loaded at Heathrow.

Perhaps the State evidence of surviving and identifiable burnt clothing and fragment is as bogus as their claim the ‘bomb case’ was loaded at Luqa!

There is overwhelming evidence of an IED having exploded in the front left-hand corner of baggage container AVE4041, without any reference to the burned clothing or the PCB fragment.

The condition of the recovered baggage container itself and the airframe under it is absolutely incontrovertible evidence that that is exactly what happened. The condition of about 25 items of luggage also recovered on the ground and known to have been loaded into that container also demonstrates that that is exactly what happened.

If there were clothes in the suitcase along with the bomb, and it is only reasonable to imagine that anyone preparing such a suitcase would add clothes to fill it up and make it look like normal passenger luggage, then why would Malta be excluded as a possible place these might have been bought? They could have been bought anywhere - Malta included.

No, Dave, it's fact. A suitcase which contained the bomb, and also contained some items of clothing purchased from Tony Gauci four weeks previously, was introduced into the baggage container at Heathrow.

That is simply the inescapable conclusion from the physical evidence recovered from the crash scene in the days and weeks immediately following the disaster.

I see two distinct if inter-related aspects to Lockerbie. The bombing itself and the creation of the "Libyan solution" for political motives largely unrelated to the bombing itself. But were the parties who created the "Libyan solution" (who were not in the normal sense of the word "terrorists" involved in the bombing itself (there is clear evidence they were) and did the plan to incriminate Libya even predate the bombing?

Perhaps Bill Taylor's comments did not after all "beggar belief". I understand he is a bit of a wheel with the Conservative Tory party. With a referendum coming up perhaps he feels the need to head off Dr Kerr at the pass! Perhaps he fancies a seat on the bench himself? Either way criticising the Crown Office or the Judiciary is probably not a good move.

Baz, my information is that Bill Taylor is Labour. I'm sure someone said he was a former Labour councillor or perhaps a council candidate. The "bit of a wheel in the Conservative party" is Richard Keen, Fhimah's lead advocate.

I agree the bombing itself and the machinations to implicate Libya may be regarded as two separate things. As regards the timeline, bear in mind that Reagan went off on one blaming Libya within about four days of the disaster. He threatened to bomb some Libyan chemical installations in retaliation. He seems to have been cut short by the almost simultaneous revelation of a humungous quantity of circumstantial evidence pointing to the PFLP-GC.

The CIA were on almost permanent "blame Gaddafi for anything we can possibly make stick" mode in the 1980s. Cannnistraro pretty much made a career out of it. So it's probably not surprising that the immediate knee-jerk response to the fall of Pan Am 103 was to do exactly that. Then, nearly three years later, when nothing could be proved against the PFLP-GC (possibly because the investigators had spent nearly three years looking in the wrong place), they reverted to type.

Thanks Rolfe, I wondered why googling Bill Taylor Tory produced no results. I mis-remembered a story I had read.

Libya, Iran, the CIA? Hopefully my completed review and comment on your wonderful book, will make my position clearer. But yes the bombing and the creation of the "Libyan solution" are essentially two different things rather clunkily meshed together (although obviously not in the official version.) I've touched ojn these issues before but I hope to bring most of it together in my review.

Libya, Iran, the CIA? From my perspective, that isn't really the point. We can't know the answer, we can only speculate.

The point is that the forensics shows, categorically and conclusively, that the bomb suitcase was on the bottom layer of luggage, exactly where Bedford saw his mysterious brown Samsonite. You have to torture the data beyond reason to make it anything else.

It's not even subtle. It is crashingly, demonstrably, staring-you-in-the-face obvious. I realised it the minute I saw the pictures of the McKee Samsonite and the lining panel of the Carlsson case. (The Schauble case took a little longer but not much.)

What on earth was going on with this inquiry? How could these so-called forensic scientists have missed this? The entire boiling of them lined up to pontificate on the condition of the container floor, asserting that this somehow allowed the bottom-level case to be discounted. That was obviously an error. They had clear evidence to show it was an error, not just in the condition of the blast-damaged suitcases but in the condition of the airframe under the floor of the container. And they didn't even look at this.

I could never understand that Claiden diagram, which has been in the public domain for years, in the context of a second-layer explosion. The damage to the airframe under the container seems self-evidently to point to a bottom-layer bomb suitcase. I thought there must be something in the forensic reports to explain that, because surely forensic scientists would never miss something that obvious. But they did.

It's not even clear that any of this was deliberate. The sheer guilelessness of the memos and the reports, the open presentation of the crucial evidence which shows all the hallmarks of having been completely overlooked, and the distressing muddle and absence of clear thought that are revealed in the detail argue otherwise.

To me, this is the real scandal of Lockerbie. Once this is investigated and explained, we can maybe move up to the higher levels of who did it and what was the CIA up to.

Dave, FIND OUT WHAT HAPPENED. It's not as simplistic as your internal narrative imagines.

Of course his identification of Megrahi sucked asteroids. There is no getting away from the fact that some of the clothes in the bomb suitcase were supplied to his shop and sold by him to someone, though.

Dave, "God is in the detail". You don't do detail. You do broad-brush fantasy. Well, you need to focus in on the detail. And you need to be able to question your pet theory and abandon it if the detail doesn't match.

You can only carry on as you are, by deliberately remaining aware of a shedload of important facts. Get up to speed, and wise up.

I think the identification had its problems, and also certain very clear strengths. All of which can be appreciated from the full narrative of how the identifications came to be made.

Dave, to assist readers, would you clarify why you keep ignoring the clear and irrefutable evidence of an IED having detonated inside a suitcase in the bottom front left-hand corner of baggage container AVE4041?

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